On blogs, in classrooms and most notably in courtrooms, we discuss the way things should be. We argue that the fantasies and aspirations that appear on the pages of court opinions should be the way they happen on the street. We can reason out intellectually the right way, the lawful way, interactions between law enforcement and citizens ought to be framed.

And then there’s this.

While very little actually happens in the video, it’s jammed with issues, questions and problems that, but for a poor choice and finger twitch, could have led to a very violent end.

Washington State is an open carry state, meaning that no license is required to carry a weapon in open view. In other words, it’s like the Wild West, where any person can strap on a gun and walk about. At the same time, this is likely proscribed for felons and the insane, though how one distinguishes the law-abiding person with a gun in plain view from the felon or crazy with a gun on his hip isn’t clear.

Here’s the problem: if the person with the gun on his hip is lawfully entitled to walk around that way, he has a constitutional right to be left alone, as he’s doing nothing suspicious, no less giving rise to probable cause. Contrary to what’s said in the video, probable cause isn’t required for the police to inquire as to identity, but reasonable suspicion is. So is there or not?

Officer Daniel isn’t going to wait to find out. The First Rule of Policing kicks in and he’s going to make sure that either way, he’s going home for dinner that night. So he draws his weapon.  The rule is that an officer doesn’t draw his weapon unless he is prepared and lawfully authorized to use it, but that rule is down the list from the First Rule. Way down the list.

As other officers arrive, however, Officer Daniel speaks magic words: Gun, gun, gun.

This is where the potential for everything to go horribly wrong is at its strongest, as these magic words are a warning to officers who know nothing about what’s happening at the scene, have no clue whether a crime is happening and, most importantly, whether their lives are endangered.  They now have only one bit of information: gun.  As information goes, this is a big one, perhaps the gravest motivator of action there is for a cop.

In this video, no one gets crazy, rushes the scene with guns drawn ready to fire or, if the “perp” was down to get in a few cheap kicks to the head long after any excuse for doing so has dissipated. But the new officers on the scene could just as easily have reacted very differently. When a cop yells “gun, gun, gun,” it’s tantamount to a command to fire. There is a reason why the First Rule is first, and that’s because no risk of harm to a cop is worth shooting second.

Notably, when the camera pans left, you see another office on his cellphone, perhaps calling for a supervisor.  He doesn’t look concerned. His hand isn’t on his weapon. His body language is relaxed. He’s neither ready nor interested in shooting anybody. He realizes there is no threat to his safety, and that Daniel over-reacted and is now stuck, refusing to back down for fear it will diminish his authority.

As for the person taking the video, note the timber of his voice, how it rises. His words suggest that he’s prepared for a confrontation, running what he would say through his head if the police confront him, but the calm assertion of rights gives way to the realization that although he may be doing nothing unlawful whatsoever, he remains a heartbeat away from a bullet. 

Law-talking guys are usually able to string together some very persuasive and official sounding arguments of law in a courtroom, often in a stentorian basso voice that carries inherent authority. But had that been me behind the video camera, I can similarly imagine my pitch rising to an alarmingly high tone, and my words failing to be as artful as I might hope. You see, I would be scared to death of an officer with his gun drawn, regardless of whether I was right or wrong about the lawfulness of my conduct. It’s not how I envision myself dying.

And then the supervisor comes.

Aside from the standard “what do you have to hide,” perhaps the most effective line police have in their arsenal of persuasion, and his “explanation” that allows the cops to save face for having over-reacted, improperly drawn a weapon against citizen engaged in lawful conduct and created a potentially explosive situation, the supervisor diffused the tension, allowed the man taking the video to go on his way and everyone made it home for dinner that night.

No court will ever review what transpired here. No judge will watch these videos, except perhaps here, and be required to determine what wrongs occurred and whether extant search and seizure law makes any sense or has any reasonable chance of adequately addressing this scenario.  The outcome was that the video-taker, the open carrier, was not arrested, searched or shot, so it falls into the dark hole of no harm, no foul. 

But it’s really not. There was a harm. A person who had a constitutional right to be left alone from the outset was not left alone. A person who could lawfully take a video, lawfully carry a gun in plain view (regardless of whether you think that’s a good idea or not), was seized for a while and put in risk of his life.

And in fairness, nobody knows, based on the video, whether the open-carrier was a felon or insane, and therefore lawfully entitled to open carry a weapon. But since there was no reasonable suspicion to believe he was a felon or insane, there was no way for Officer Daniel to find out and he still had the First Rule of Policing to consider.  That’s how things really happen on the street, and it’s kismet that this interaction happened without anyone being harmed.

At 6:14, a TSA drudge makes  Maria Muldaur’s prediction come to life. 



Via Huff Post, Ashley Jessica, a 27-year-old Ph.D student from Toronto, didn’t go to the San Diego Airport looking for a good time.

About halfway into the procedure, a TSA agent feels the area between Jessica’s breasts, and Jessica puts up her hands as if to protect herself from further touching.

Less than two minutes later, the agent appears to run her hands all the way up the inside of Jessica’s leg. Jessica pulls away and becomes visibly uncomfortable.

“OK, you need to hold still for this process,” says another TSA agent, who is off-screen.

“She just touched my vagina!” Jessica replies. “Seriously! That was not my upper thigh.” (Jessica eventually submitted to the pat-down and was cleared to fly to Toronto.)

In review of the closed-circuit video, it is abundantly clear that the two TSA officers conducting the pat-down carried out their responsibilities in a professional and polite manner and according to procedure, offering the passengers the opportunity to have the pat-down conducted in a private setting and taking time to explain each step along the way.

The subject line of the email read:

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The Avvo Legal Marketplace has a prospective client for you!

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The overarching problem Avvo was created to address is that consumers are lost when it comes to choosing a lawyer. In a recent Ipsos survey (sponsored by Avvo), only 17% of consumers said it was easy to find detailed information about lawyers; only 17% said they were very confident in their ability to choose the right lawyer; and up to 25 million over the past 2 years said they considered hiring a lawyer but didn’t because they didn’t know how to choose the right one.

Attorneys participate in the Avvo Legal Marketplace because it offers an efficient and effective way to showcase their expertise and experience to consumers who are ready to hire.

In his 2013 State of the Judiciary address, New York Chief Judge Jonathan Lippman spoke the unspeakable, announcing the formation of a committee to ” to study the feasibility of allowing non-attorneys to provide legal services to poor New Yorkers in “simpler” civil matters.”  You’ve got to give him credit for using the fiat of his office to begin the process of making change, as he did with the  50 hours of pro bono as a requirement for admission to the New York bar.

That there are systemic problems is nothing new, at least to those of us paying any attention at all. So what pushed Lippman into the fray?

Despite the pro bono contributions made by attorneys and the courts’ funding of civil legal services, Lippman said the state “simply cannot keep pace” with the growing need for legal services among low-income New Yorkers.

Some civil legal services providers say they turn away as many as seven in eight people who seek services because of insufficient resources.

The new committee will examine to what extent “non-lawyer advocates” who are expert in certain areas “can help the most vulnerable and the most disadvantaged,” Lippman said in an interview.

Roger Maldonado, a partner at Balber Pickard Maldonado & Van Der Tuin in Manhattan, and Fern Schair, chairwoman of the Feerick Center for Social Justice at Fordham University School of Law, will co-chair the Committee on Non-Lawyers and the Justice Gap. Lippman said the committee will make preliminary recommendations for pilot programs by November.

The 20 members of the committee in addition to the two co-chairs include private attorneys, civil legal services providers, bar association representatives, advocates for the poor and one judge, Jenny Rivera of the Court of Appeals.

Meanwhile, the bar has categorically refused to investigate how educated and character-tested non-lawyers may participate in the delivery of legal services and how that participation will help make legal services available to those who cannot now afford them but can afford something. The fact that the near-poor are largely cut off from legal help in civil matters has been long decried and as long uncorrected. 

Given the traditional bar’s new competitors (outsource companies; differently trained lawyers abroad in differently constituted firms; compliance officers who, after all, advise on compliance with law; companies selling computer-driven legal advice like Turbo Tax sells tax help; Axiom and its competitors), you’d think the organized bar would want a seat at the table, if only to help formulate adaption to the new world that technology and cross-border practice entail. 

Remember the Halcyon days when a cop had to claim a young black man made a furtive movement before he could justify the use of force?  Good times, but they’re in the past. We now have a new, even more nuanced excuse for a takedown, the “dehumanizing stare.”



And the puppy too?  It’s not entirely clear how 14-year-old Tremaine McMillian could simultaneously be holding his puppy and clenching his fists, but if the police say so, who are we to question? 

Tremaine McMillian learned a hard lesson about what it means to be young, black and armed with an intimidating stare. Turns out that you don’t even have to commit a crime to get choked out. All he did was shoot a few “dehumanizing stares” at officers who slammed him to the ground and put him in a choke hold. Police claim he was clenching his fists and looking menacing but the teenager claims that he was busy bottle feeding a puppy at the time.

“All of that body language alone is already letting the officers know that this is a person that now is obviously getting agitated and can become violent,” said Miami-Dade Police Detective Alvaro Zabaleta.

Zabaleta told CBS that the police report from the incident doesn’t mention a puppy.

“Of course we have to neutralize the threat in front of us,” he said. “And when you have somebody that is being resistant…that’s the immediate threat. At this point we’re not dealing or concerned with the puppy.”

Does Zabaleta watch himself, read his words, afterward and cringe, think aloud: “could I have sounded like I was more full of shit?”

Mothers, tell your children that they are not only to be kind and gentle with their new puppies, and not to raise a clenched fist when a police officer is anywhere in view, but also to avert their eyes, lest the police feel dehumanized, perhaps even bullied, and then do what they have to do to “neutralize the threat.”

And keep your cameras at the ready, because nobody would believe this utter load of crap being offered by Det. Alvaro Zabeleta and the Miami-Dade police. That they would be so ridiculously shameless isn’t so much a reflection on the police, as it is a reflection on how passive, how willing to bite on any nonsense they feed us, they view the public. 

Can’t you hear them back at the station, saying “tell them the kid gave us a ‘dehumanizing stare’ and we had to take a 14-year-old kid holding a puppy down.” 

“Come on, who would be stupid enough to believe that?”

Hey, you bought the “furtive movement.” Why not?

Update: And if you think Miami-Dade cops are twinkies for trying to justify their misconduct on Tremaine McMillian puppy-handed dehumanizing stare, how would they react to this:
 

Whenever I write about the corporate crime issues, many of those whose interest is flamed by the David versus Goliath fight of constitutional rights and the weak talking truth to power hit the back button on their browser as quickly as possible. They’re conflicted by whether their hate of the government is stronger than their hate of corporations. If there was a button for “a pox on both your houses,” they would be pounding it hard.

Just chill out, as there are significant parallels and lessons to be learned from how the Foreign Corrupt Practices Act (FCPA) has compelled multinational corporations to behave like sniveling sycophants at the beck and call of the government, and how this has empowered the Department of Justice to dictate its will to everyone.  I know, stories about the FCPA never involve a CEO’s face assaulting the boot of a federal agent, and there is rarely anyone to cheer for, but what happens to the most powerful tells much about what happens to the least.

From Joe Palazzolo at the Wall Street Journal Law Blog, an interview with “Nathaniel Edmonds, who recently left the Justice Department’s FCPA unit for Paul Hastings LLP.”

Though we don’t know how often it happens, the Justice Department sometimes  drops Foreign Corrupt Practices Act cases without bringing charges, even when prosecutors find potential violations of the law. Such an occasion is known within the agency as a “declination.”

Mr. Edmonds, who was a supervisor in the FCPA unit, told Law Blog in an interview that there has never been a public instance of a company receiving a declination when the conduct in question was found independently by the Justice Department. In other words, a  company increases its chances of a declination geometrically by telling on itself.

For starters, Mr. Edmonds says in a new client alert , a company has to have a strong and nimble compliance program in place — one that evolves with best practices. It’s the best proof of a company’s commitment to the law, which bars bribery overseas.

With that foundation, what happens when a company finds a potential problem on its own?

Mr. Edmonds’s client alert is instructive here: stop the bribes, preserve the evidence and make sure the internal investigation is properly “scoped” — meaning that a company must rummage through the appropriate  business lines and subsidiaries, without straying too far or stopping short.

Given the pace of FCPA prosecutions in recent years, and the billions with a B in penalties assessed by the Justice Department and the Securities and Exchange Commission, [how to get a declination] is a question worth asking.

But how could they? I gave this company my life and made them a fortune, and they sacrifice me at the first chance they get?  I thought they loved me?

Not all potential [FCPA] problems, however, are appropriate for disclosure. After investigation, allegations of misconduct may not result in a determination that illicit activity has occurred. Problematic payments may not be sufficiently material to amount to an FCPA violation…

Prematurely attracting the government’s attention may, as a practical matter, shift the burden to the company to prove the absence of a corruption problem. Enforcement officials may feel the need as a matter of basic human nature to seek some type of resolution to a case where they have invested significant time and effort. Companies need to weigh the potential benefits of cooperation against the significant costs of initiating a potentially unwarranted government investigation.

At Volokh Conspiracy, Eugene offers an unusual paradigm to explain why the  new rules of engagement for university discipline being forced down the throats of higher education by the DoJ and DoE aren’t, as has been argued here, totally insane.  Among other things, it requires colleges and universities receiving federal funds to employ a “preponderance of the evidence” standard in determining guilt in their disciplinary proceedings.

First, let’s think of preponderance of the evidence, clear and convincing evidence, and proof beyond a reasonable doubt as probability thresholds. Preponderance of the evidence means that the university should expel or discipline the accused student if there’s just a bit more than a 50% chance that the student is guilty. Clear and convincing evidence might be seen as requiring a 75% or 80% probability, or thereabouts. Proof beyond a reasonable doubt might be seen as requiring a 95% probability. These are oversimplifications, to be sure, but they are probably the most helpful way of looking at these standards.

And each of these probabilities might correspond to a number n in the statement that “better that n students guilty of sexual assault remain at the university, with no discipline imposed, than one innocent student be expelled or otherwise disciplined.” Proof beyond a reasonable doubt would be something like “better that ten students who have committed sexual assault remain at the university unpunished than one innocent student be expelled.” Proof by clear and convincing evidence would be something like “better that three guilty students (but no more) remain at the university than one innocent student be expelled.” Proof by a preponderance of the evidence would be something like “better that one guilty student (but no more) remain at the university than one innocent student be expelled.”

Of course, in criminal cases the standard is proof beyond a reasonable doubt. In criminal cases, a person’s liberty or life is usually at stake, so the legal system does say, “better than ten guilty people go free than one innocent person go to prison (or be executed).” But that this is true in criminal cases doesn’t tell us whether the same should be true when something less serious — both in terms of tangible loss and in terms of public condemnation — is at stake.

That’s why in civil cases, the more likely than not standard is routine. If you sue me, alleging I breached a contract or injured you in some way, you can prevail under this standard, even if the result is that I am financially ruined.

Should we say “better that 10 rapists be allowed to stay at the university than one innocent student be expelled”? I don’t think so. “Better that 4 rapists be allowed to stay at the university than one innocent student be expelled” (the clear and convincing evidence standard)? I doubt it, partly because we don’t say this even when a lawsuit risking a defendant’s entire life savings is involved, or when the loss of a job and perhaps a career is involved.

Why is Scalia so enraged? Three reasons. First, that’s just his way. Second, he’s offended as a textualist—a judge who believes first and foremost in sticking closely to the wording of a statute. And third, like I said, this is the latest battle in a long-standing war.

–Emily Bazelon, Slate, 2013

On Tuesday, the Supreme Court widened what it called the “gateway” to reviewing claims of actual innocence that are made long after the one-year deadline expires. It’s a 5-4 decision, split between liberals-plus-Kennedy and conservatives. The opinions, by Justice Ruth Bader Ginsburg and Justice Antonin Scalia, read like a pitched battle in a long-simmering war. At the end, Ginsburg succeeds in opening what she calls a “gateway” to court for innocence claims that blow by the one-year deadline.

In theory, a majority of the Supreme Court has now agreed to such an exception. “Actual innocence, if proved, serves as a gateway through which a petitioner may pass,” Ginsburg wrote. But she also warned that “the exception applies to a severely confined category.” It is not enough for Perkins to assert that he has evidence of his innocence. He also has to show that “it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence.”

In dissent, however, Justice Scalia says Congress should be furious. The court is not interpreting AEDPA, Scalia says, but rather rewriting it. SOS to Congress: “Judicially amending a validly enacted statute in this way is a flagrant breach of the separation of powers.” Attacking Ginsburg’s point that allowing for an exception to AEDPA’s one-year deadline merely brings federal law into line with the states, Scalia rockets into the derision stratosphere: “With its eye firmly fixed on something it likes—a shiny new exception to a statute unloved in the best circles—the court overlooks this basic distinction, which would not trouble a second-year law student armed with a copy of Hart & Wechsler.”

Oh, wait, one more insult: He also calls Ginsburg’s interpretation a “blooper reel.” (Ginsburg called all of this “bluster.”)

For Scalia, the moral of the story is clear: Innocence doesn’t—and shouldn’t—always win. “This court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is ‘actually’ innocent,” he wrote in 2009. Scalia lost that time, too. But in the end, the man he was writing about—Troy Davis—was executed for the murder of a Georgia police officer even though seven of the nine witnesses who testified against him at trial had recanted.

At the top of New Hampshire license plate, it boldly reads, “Live Free or Die.” This is an important lesson. Never believe license plates, as a Dover man learned when he applied for the “vanity” plate, COPSLIE.  From WMUR9 :

The Department of Motor Vehicles refused to issue a plate to a Dover man in 2010 that read “COPSLIE,” calling the text “insulting.” The DMV cited a state statute that says a vanity plate can’t be “ethnically, racially (insulting) or which a reasonable person would find offensive to good taste.”

Months later, the man was again denied “COPSLIE,” but the DMV approved his second choice, which can be read to say, “Great government.”

“If you praise the government, that’s OK. You can get a plate that does that,” he said. “If you criticize the government or agents of the government, that’s not OK. That’s how the petitioner is trying to frame his argument here.”

In the New Hampshire case, the state Supreme Court is doing something uncommon, soliciting opinions from people not directly connected to the case. The American Civil Liberties Union is planning to present an opinion, saying the state DMV made a mistake.

2006 when a single DMV employee decided arbitrarily that the word was offensive after consulting only the Urban Dictionary, an online source which defines words through user-generated content. Because someone on the Urban Dictionary defined “hoe” as “whore,” Mr. Junge’s plate was revoked.

The Court agreed with the ACLU’s arguments that the DMV cannot make First Amendment decisions arbitrarily. Instead, the DMV must show substantial evidence proving that a requested plate is inappropriate. While the Urban Dictionary may be an entertaining website about the English language, the Court acknowledged that it is not a reliable source for decisions about acceptable speech. In relying solely on the Urban Dictionary to deny Mr. Junge’s license plate, the DMV violated the First Amendment. The ACLU of Nevada applauds the Nevada Supreme Court for its decision to permit the “HOE” plate.

Women often argue that we would live in a kinder world if only they held the weapons. Not so in Sacramento, given how an unnamed female cop beat an unnamed male, proving that a woman can be every bit as bad a police officer as a man.



The video first appeared on CBS13, and the  Sacramento Bee picked it up from there:

According to a statement from the Sacramento Police Department, the incident began when the suspect entered a nearby store and began speaking unintelligibly. Fearing for her safety, a female employee in the store called 911. When officers responded, the suspect, who had left the store, reentered and attempted to barricade himself inside with the employee.

In the process of extricating him from the store, the suspect became combative and was able to “physically overpower” one of the responding officers, continues the release, thus justifying the need for pepper spray, baton strikes, and additional assistance from other responding officers.

Combative is one of those words that police use that doesn’t mean what you think it does. Shielding one’s face from baton blows? Combative. Using one’s hands to stop a police dog from crushing one’s throat? Combative. Trying to prevent a female officer from beating one to death? Combative. See how that works?

Unfortunately, the unnamed male was combative, by police standards.

Shortly after taking the man into custody, the release states, officers “noticed that he was unresponsive,” at which point he was taken to a hospital and pronounced dead.

Not that they killed him, but that the officers “noticed” that he was dead. They are trained to be observant, you know.  This is the imaginary conversation that ensued.

Hey, Sally, do you notice that this fellow isn’t moving?

Why no, Chet, I hadn’t noticed. But now that you mention it, you’re right.

I wonder why, Sally? He was moving before, when I was holding him on the ground so you could beat him repeatedly with your baton.

Not a clue, Chet. Sometimes, these things happen. He probably had hypertensive heart disease. A lot of men his age die of heart disease, you know.

Yeah, Sally, you’re probably right. He should have paid more attention to his diet.

There is a somewhat natural inclination to draw an analogy between what happened here and what happened to David Sal Silva in Kern County, but to do so would be to ignore two salient details. The first is that the woman who took the video got it into the hands of CBS13 before the police seized it as evidence. The second is that the officer with the baton was a woman, which means the unnamed man died a more gentle death in the hands of the police.